"The bottom line is that if Mr. Trump or his lawyers allege — even without his testifying — that he declassified the documents, a criminal charge of unauthorized possession of classified documents would be difficult to prove. That doesn’t mean that a prosecutor could not get a grand jury to indict this particular ham sandwich. It does mean that it’s unlikely that a conviction against Mr. Trump would be sustainable.
The government is certainly aware of these difficulties, so it may be seeking to indict Mr. Trump on some process crime, such as obstruction of justice. But it will be difficult to establish that Mr. Trump crossed the line from vigorously and lawfully defending his conduct to engaging in criminal obstruction.
No citizen is required to cooperate in a Department of Justice criminal investigation, as President Biden and others have commendably done. Nor can he actively obstruct such an investigation by unlawful means. The government will have a hard time proving beyond a reasonable doubt that Mr. Trump willfully crossed this line.
Based on what we know, we believe that there is no legitimate basis for a criminal indictment of Mr. Trump based on the material that was found at Mar-a-Lago."
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